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How the Prospect of Indictment Could Impact the President’s Decision Making

 

Over the weekend, the New York Times revealed that former Independent Counsel Kenneth Starr concluded that it was “proper, constitutional, and legal for a federal grand jury to indict a sitting president.” Although Starr’s conclusion was previously unknown, there can be little doubt that the President’s team has considered the possibility of an indictment for some time. As I told the Times, the specter that the President could be indicted should factor into his and his team’s legal analysis. It’s worth examining how the prospect of indictment could affect the President’s decision making.

Whenever I represent someone who is the subject of a federal criminal investigation, we consider all of the potential liability they have and sort it into tiers based on severity. Inevitably the prospect of a criminal indictment and conviction is alone in the top tier by itself. No matter who you are, the risk of becoming a convicted felon and spending time in prison dwarfs any other consideration. There are other considerations as well—being the subject of a criminal investigation has its own costs—but a criminal conviction and sentence is the most grave.

As a starting point, I typically assess the likelihood of a criminal conviction and what the potential punishment could be. At this point, the public doesn’t know how likely it is that the President could be convicted of a crime. Moreover, even if his lawyers believe there is strong evidence of guilt—which we don’t know, at this point—they would have to factor in the possibility that an indictment would be dismissed by federal courts. The President’s lawyers would also have to consider the more likely scenario that Special Counsel Robert Mueller would choose not to seek an indictment and that no state prosecutor would bring charges either.  In that scenario, they would have to weigh whether the House would impeach the President, whether the Senate would convict—19 GOP votes would be required—and whether a new President would pardon him if he was removed from office.

Each of those roadblocks independently reduce the likelihood that the President would ever be convicted. But even if the chance of a conviction is very low, the consequences would be so severe that they would still significantly affect the President’s legal strategy. No one, especially a billionaire and a president, wants to spend even one night in prison.

Given that reality, someone facing even a remote possibility of a criminal conviction would sacrifice other considerations to reduce the chance of a conviction even more. In the President’s case, that might mean trying to shut down or drag out civil cases, and if that failed, paying much more than he would otherwise to quickly settle them if discovery in those cases would force associates to testify on matters that could bolster the criminal investigation. It might also mean taking the Fifth in a civil case even though doing so would create an inference, whether accurate or not, that he is guilty of something. Certainly it would also mean taking the Fifth in Mueller’s criminal investigation and potentially refusing to produce documents, a step that Michael Flynn took.

It might also mean that the President could be willing to make decisions that hurt him personally or politically in order to drive down his criminal liability. If an associate faces charges and could flip on him, the President could pardon the associate if he were confident that the associate would refuse to cooperate with prosecutors or testify against him afterward, even in the face of contempt proceedings.

If the risk became high enough, a desire to avoid criminal culpability could lead the President to create a crisis by causing Mueller to be fired, either by firing Deputy Attorney General Rod Rosenstein and others or by replacing Attorney General Jeff Sessions with someone who would fire Mueller. He could even consider pardoning himself, as Richard Nixon considered doing in his last days as President.

If some of these options sound familiar, that’s because media reports have suggested that the President has recently considered them. If those reports are accurate, it suggests that the President is concerned that he or someone he cares a lot about could be convicted of a crime—whether related to the Russia matter, obstruction of justice, or financial offenses. Someone who had little criminal liability to worry about would not need to consider pardons and would not fear the result of an independent criminal investigation like Mueller’s, because the investigation would clear him and his associates of wrongdoing.

Image credit: Getty

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About the Author

Formerly a Federal Prosecutor in the Securities and Commodities Fraud Section of the United States Attorney's Office for the Northern District of Illinois Follow him on Twitter (@renato_mariotti).